Draft third edition of USA copyright office compendium – Typeface and Mere Variations of Typographic Ornamentation and Mere Copies

The copyright law does not protect typeface or mere variations of typographic ornamentation or lettering. A typeface is a set of letters, numbers, or other symbolic characters with repeating design elements that are consistently applied in a notational system that is intended to be used in composing text or other combinations of characters. Typeface includes typefonts, letterforms, and the like.

The U.S. Copyright Office cannot register a claim to copyright in typeface or mere variations of typographic ornamentation or lettering, regardless of whether the typeface is commonly used or truly unique. Likewise, the Office cannot register a simple combination of a few typefonts, letterforms, or typeface designs with minor linear or spatial variations. Congress concluded that typeface is not copyrightable. The House Report expressly states: “The Committee does not regard the design of typeface, as thus defined, to be a copyrightable ‘pictorial, graphic, or sculptural work’ within the meaning of this bill…”

The Office cannot register a claim that is based solely on calligraphy because calligraphy is a stylized form of handwriting that is a mere variation of typographic ornamentation. Although calligraphy in itself is not copyrightable, a literary work, a pictorial work, or a graphic work that contains a sufficient amount of original authorship may be registered notwithstanding the fact that it is executed in calligraphic form.

As a general rule, the mere arrangement of type on a page or screen is not copyrightable. However, if the arrangement produces an abstract or representational image, such as an advertisement that uses letters to create a representation of a person, the Office may register the claim provided that the resulting image contains a sufficient amount of pictorial expression.

The Office may register computer programs that generate typeface(s) provided that they contain a sufficient amount of literary authorship. However, the registration does not extend to any typeface or mere variations of typographic ornamentation or lettering that may be generated by the program.

A work that is a mere copy of another work of authorship is not copyrightable. The Office cannot register a work that has been merely copied from another work of authorship without any additional original authorship.

As a general rule, the registration specialist will not search the Office’s records or conduct independent research to determine whether the work was created by the author(s) named in the application because the existence of similar or identical works will not preclude a claim in a work that was independently created.

However, if the applicant asserts a claim in a work that is unusually similar to another work of authorship that is known to the specialist, he or she may communicate with the applicant. If the specialist determines that the author copied or incorporated another work of authorship, he or she may ask the applicant to exclude the pre-existing work from the claim or may refuse registration if the author did not contribute a sufficient amount of additional original authorship to the work.